On April 26th, the Newfoundland and Labrador Supreme Court – Trial division dismissed an application to limit production of e-mails.
The defendant (and plaintiff by counterclaim) in a departing employee dispute brought the application. It sought relief from a consent order requiring to search, review and produce e-mails of thirteen custodians based on a list of stipulated terms, including e-mails in active storage and e-mails in archive or backup systems. Having produced some e-mails under the order, the defendant asked for any further production obligations under the order to be terminated and, alternatively, for an order for further production to be based on proven need and/or cost shifting.
The Court was not satisfied that limiting production was warranted based on the defendant’s evidence, which it said “boiled down” to evidence of current efforts and costs and technical difficulties in meeting the order. Its reasoning suggests that the defendant’s evidence of bare cost alone (some of which it questioned) did not impugn the process embodied in the consent order, which it presumed was proportionate and of reasonable quality. The Court did receive evidence that an element of the process was flawed in that a search for the words “Newfoundland” generated a large number of responsive records for one custodian. In response, the Court held this search term was “too broad to be useful” and directed the parties to discuss the matter.